Posted on December 14, 2007 by Travis Tormey

Plea Bargaining in NJ DWI Cases

Plea bargaining is a traditional practice for criminal defense lawyers in attempting to resolve criminal charges for their clients. However, in New Jersey drinking and driving cases this option is not available. All offenses set forth under N.J.S.A. 39:4-50(a), including the offense of permitting the intoxicated operation of a motor vehicle may not be the subject of plea bargaining in municipal court. State v. Hessen, 145 N.J. 441 (1996). The purpose behind the absolute ban on plea bargaining drunk driving cases in municipal court is to preserve "public confidence that a meritorious drunk driving offense will not be bargained away" by the prosecutor. State v. Marsh, 290 N.J. Super. 663 (1996).

Because of this absolute ban on plea bargaining in New Jersey DWI cases, many individuals think that they do not need a lawyer. This is a major error by many individuals charged with a DWI in New Jersey. First, an attorney can challenge the stop for lack of probable cause or reasonable suspicion to believe that the individual is intoxicated. If there is insufficient probable cause for the stop, the DWI charges must be thrown out. Also, the breathalyzer results can be challenged based on the certificate of inspection or the operator. Moreover, even if you do not have defense to the DWI or Refusal, it is imperative that you get the minimum penalties for the charge such as seven months suspended license on a first offense rather than a year. This could have a significant impact on your quality of life for that additional 5 months of your driver's license suspension.

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Posted on December 11, 2007 by Travis Tormey

Under the Influence of Alcohol Defined

"Under the influence" of alcohol seems fairly easy to define and understand. However, legal interpretation is often very different than a conversational understanding of a word or phrase. This legal term has been interpreted many times by the courts in New Jersey. In State v. Tamburro 68 N.J. 414 (1975), the New Jersey Supreme Court defined "under the influence" of drugs or alcohol as "The language 'under the influence' used in the statute has been interpreted many times. Generally speaking, it means a substantial deterioration or dimunition of the mental faculties or physical capabilities of a person whether it be due to intoxicating liquor, narcotic, hallucinogenic or habit producing drugs." In State v. Johnson 42 N.J. 146 (1964), the Court stated that it was the intention of the Legislature under NJSA 39:4-50(a) (the drinking and driving statute) in forbidding the operation of a motor vehicle while under the influence of alcohol "to prescribe a general condition, short of intoxication, as a result of which every motor vehicle operator has to be said to be so affected in judgment or control as to make it improper to drive on the highways." Moreover, the New Jersey DWI statute "penalizes a person who drives 'while under the influence of intoxicating liquor.' Although prosecutions pursuant to its provisions are commonly and colloquially termed 'drunken driving cases', it is settled that the statute does not require as a prerequisite to conviction that the accused be absolutely 'drunk', in the sense of being sodden with alcohol. It is sufficient if the presumed offender has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected." State v. Emery, 27 N.J. 348 (1958). Finally, in State v. Rodgers 91 N.J.L. 212, the court discussed under the influence by holding: "The expression 'under the influence of intoxicating liquor, covers not only all the well known and easily recognizable conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in intoxicating liquors, and which tends to deprive that person of that clearness of intellect and control of himself which he would otherwise possess."

As you can see, there is considerable direction regarding the definition of "under the influence"when conducting DWI prosecutions in New Jersey.

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